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IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH.

CRWP-9010-2020
Date of decision: 11th Feburary, 2022

Gautam Kalia .....Petitioner

Versus

State of Punjab and Others .....Respondents

CORAM: HON'BLE MR. JUSTICE SANT PARKASH

Argued by: Dr. Bandana Trikha, Advocate

for the petitioner.

Mr. Tanvir Joshi, AAG, Punjab

****

SANT PARKASH, J.

1. The case has been taken up for hearing through video

conferencing.

2. The petitioner has filed the present petition under Article

226 of the Constitution of India for directing the respondents to release

the petitioner prematurely on usual terms and conditions in view of the

Govt. Policy dated 08.07.1991 (Annexure P-1) and quashing of order

dated 06.01.2020 (Annexure P-2) whereby the case of the petitioner for

his premature release has been declined.

3. The petitioner along with other co-accused was arrested in

case FIR No. 56 dated 05.04.1999 under Sections 302, 324, 323, 148

and 149 of the Indian Penal Code, 1860 and Section 25 of the Arms Act

registered at Police Station Model Town, Hoshiarpur. The petitioner

was tried for the aforesaid offences and after completion of trial, the

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petitioner was convicted and sentenced to undergo imprisonment for

life by the Court of learned Additional Sessions Judge (Adhoc),

Hoshiarpur vide order dated 16.12.2002. Feeling aggrieved, the

petitioner assailed the aforesaid judgment by filing appeal CRA-D-64-

DB-2003 which was also dismissed vide order dated 14.05.2013.

4. The petition has been opposed by the respondents/State in

terms of reply filed by way of affidavit of Manjit Singh Tiwana, PPS,

Superintendent, Central Jail, Hoshiarpur.

5. Learned Counsel for the petitioner reiterating the contents

of rejoinder filed to the reply filed by the respondents has submitted

that the Punjab Govt. had issued instructions dated 08.07.1991

(Annexure P-1) with regard to the Pre-Mature release of the life

convicts and as per the said policy, the petitioner was required to

undergo rigourous imprisonment of 10 years of actual sentence and

total 14 years sentence with remissions whereas the petitioner has

already undergone more than 12 years of actual sentence of

imprisonment and has further undergone more than 20 years of

sentence including remissions. Further detention of the petitioner is

against the said Govt. policy and in violation of Article 21 of the

Constitution of India. The petitioner was fulfilling all the conditions for

grant of pre-mature release as per the Govt. Instructions dated

08.07.1991 and his case for pre-mature release was initiated and

recommended but was subsequently declined on the ground that he had

committed jail offence on 02.04.2018, whereby a mobile phone was

recovered from the petitioner and a case was registered against him

under Section 52-A of the Prisons Act, 1984. The parole of the

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petitioner was stopped for one year in view of the said case. The

petitioner has already been punished for the alleged offence but the

official respondents are now again punishing the petitioner by not

considering his case for another five years. The condition of

maintaining good conduct in jail is not applicable in the case of those

convicts who have already been convicted and sentenced for

committing jail offences or crime separately. Further, the instructions

which were applicable at the time of conviction were to be applied for

grant of premature release to a life convict and in the present case, the

Government has wrongly considered the case of the petitioner for

premature release under instructions dated 04.04.2013, whereas his case

was to be considered as per policy dated 08.07.1991 which was

prevalent at the time of his conviction.

6. Learned Counsel for the petitioner has further submitted

that the petitioner has already undergone the requisite sentence as per

policy dated 08.07.1991 and in view of the same, the present petition be

allowed and the petitioner be set at liberty forthwith.

7. On the other hand, learned State Counsel reiterating the

contents of reply has submitted that premature release case of the

petitioner was initiated and after obtaining police verification report,

his case for premature release was sent to the Office of Additional

Director General of Police (Prisons) Punjab, Chandigarh vide letter

No.81 CT dated 03.01.2019 under the Government Policy dated

14.12.2017. Thereafter on 02.04.2018, during surprise search in Central

Jail, Kapurthala, a mobile phone was recovered from the petitioner for

which a case bearing FIR No.78 dated 02.04.2018 under Section 52-A

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Prisons Act, PS Kotwali, Kapurthala, was got registered against the

petitioner. The Office of Additional Director General of Police

(Prisons) Punjab, Chandigarh vide its letter No. G-I/G-5/75 dated

06.01.2020 rejected the case of the petitioner for premature release

stating that the he did not maintain good conduct in the jail in the last

five years and a mobile phone was recovered from the petitioner.

8. Learned State Counsel has further submitted that as per the

Government Policy dated 14.12.2017, Para No. 9, it is mandatory for

any life convict to maintain good conduct in the jail for last five years

before consideration of the premature release case. Though, the

petitioner has completed the required sentence as per the Government

Remission Policy dated 14.12.2017 but he has not maintained good

conduct in jail for the last five years as mobile phone was recovered

from possession of the petitioner on 02.04.2018 and even the parole of

the petitioner was stopped for one year in accordance with the

instructions issued by the Office of Additional Director General of

Police (Prisons) wherein it has been mentioned that the conduct of any

convict will not be considered as good conduct for one year from the

date of committing any jail offence. The petitioner has requested to

consider his premature release case as per the Pre Mature Release

Policy dated 08.07.1991 of Government of Punjab and even in Para No.

3(B)(II) of the said policy, it has been specifically mentioned that the

case of premature release will only be considered provided the convict

has maintained good conduct in jail and has not committed any jail

offence for a period of five years prior to the date of eligibility for

consideration of his/her release. Therefore, the present petition being

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devoid of any merits may be dismissed.

9. In the present case, the petitioner has sought his premature

release on the ground that as per policy dated 08.07.1991 which was

prevalent at the time of his conviction, he has completed the required

sentence for considering his case for pre-mature release. However, the

respondents have considered the case of the petitioner under the

policy/instructions dated 14.12.2017 of the Government. Further, it has

been pleaded that the petitioner has already been punished for the

alleged jail offence of recovery of mobile phone from him and by not

considering his case for another five years despite completion of his

sentence as required in view of the policy/instructions of the State

Government for pre-mature release he is being punished twice for the

same offence.

10. Hon'ble Apex Court in its judgments passed in Criminal

Appeal No. 566 of 2010 (Arising out of SLP (Crl.) No. 6638 of 2009

titled as “State of Haryana and Ors. Versus Jagdish” decided on

22.03.2010 and Criminal Appeal No. 30 of 2005 titled as “State of

Haryana Versus Mahender Singh and Others” decided on

02.11.2007 has held that for grant of remissions, the life convict would

be governed by the policy of remission of Govt. prevailing on the date

of the judgment of conviction and not by the policy which existed on

the date of consideration of his premature release. Also, in case a liberal

policy prevails on the date of consideration of the case of a “lifer” for

pre-mature release, he should be given the benefit thereof.

11. Further, in Mahender Singh & Ors. (Supra), it has been

held that whenever a policy decision regarding remission of sentence is

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made, persons must be treated equally in terms thereof. A fortiori the

policy decision applicable in such cases would be which was prevailing

at the time of his conviction.

12. In “Lila Singh Versus State of Punjab”, 1988(1) RCR

(Criminal) 28, this Court has held as under :-

“ 7. The reasoning given in the order declining the pre-

mature release of the petitioner, to the effect that he had
committed a jail offence and his release will prove
hazardous to peace and tranquility in the locality are no
legal reasons to decline the pre-mature release. He has
already undergone the imprisonment awarded to him for
committing the jail offence and there is no material to hold
that his release is likely to prove hazardous to peace and
tranquillity in the locality.”

13. In “Kamal Kant Tiwari Versus State of Punjab and

Others” 2014 (2) RCR (CR) 940, this court has held that jail offence

committed by life convict not to be taken in to conduction while

considering his case for grant of pre-mature release as the convict will

have to face consequences for jail offence separately.

14. In “Subhash Versus State of Haryana” 1994(3) RCR

(Criminal) 489, this Court has held that commission of jail offences is

no legal ground to deny premature release which became due especially

when convict had already been punished for jail offences.

15. In view of the above referred judicial precedents, this fact

is not disputed that the case of premature release of a life convict is

governed by the policy of the Government prevailing on the date of

judgment of conviction and not by the policy which exists on the date

of consideration of his premature release.

16. It is pertinent to mention here that the Office of Additional

Director General of Police (Prisons) Punjab, Chandigarh has rejected

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the case of pre-mature release of the convict/petitioner on the sole

ground that the petitioner has not maintained good conduct in the Jail

for the previous five years as a mobile phone was recovered from the

petitioner whereas, the petitioner had already served the punishment for

the said offence by stopping his parole for a period of one year. As held

by this Court in the above referred judicial precedents, the commission

of jail offence is no legal ground to deny premature release, especially

when the person has been punished for such a misconduct. Therefore,

the case of the convict/petitioner for grant of premature release is to be

considered without taking into consideration the jail offence.

17. Since, the petitioner in the present case has completed the

required sentence as per the Government Remission Policy which was

prevalent at the time of his conviction and has already served the

punishment for the offence committed by him in jail, the present

petition is allowed and impugned order dated 06.01.2020 (Annexure P-

2) is set aside. The petitioner be set at liberty forthwith, if not required

in any other case.

18. The petition stands disposed of with the aforesaid order.

(SANT PARKASH)
11th Feburary, 2022 JUDGE
kavneet singh

Whether speaking/reasoned : Yes/No

Whether reportable : Yes/No

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TM
This is a True Court Copy of the judgment as appearing on the Court website.
Publisher has only added the Page para for convenience in referencing.

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